Law Enforcement Liability Reporter – November 2017

//Law Enforcement Liability Reporter – November 2017

Law Enforcement Liability Reporter – November 2017

2017-11-07T11:10:24+00:00 November 16th, 2017|Legal Updates|Comments Off on Law Enforcement Liability Reporter – November 2017

A civil liability law publication for Law Enforcement

ISSN 0271-5481

Cite this issue as: 2017 LR November


  • Digest Topics
  • Dogs
  • Electronic Control Weapons: Dart and Stun Mode
  • Expert Witnesses
  • Firearms Related: Intentional Use (2 cases)
  • First Amendment (2 cases)
  • Racial Profiling
  • Search and Seizure: Home/Business
  • Terrorism and National Security IssuesResourcesCross References



  • Some of the case digests do not have a link to the full opinion.
  • Most Federal District Court opinions can be accessed via PACER. Registration required. Opinions are usually free; other documents are 10¢ per page.
  • Access to cases linked to may require registration, which is free.


****Editor’s Case Alert****

A federal appeals court overturned the denial of qualified immunity to an officer who shot and killed a dog when it ran onto a highway, obstructing traffic. The plaintiff could not cite, and the appeals court did not find, any case holding that an officer violated the Fourth Amendment when he shot and killed an unrestrained, unsupervised dog creating a serious risk to public safety and avoiding numerous attempts to control him without force. The dog’s actions caused cars to swerve, change lanes, and seek safety on the shoulder of the road. The officer’s actions under the circumstances were objectively reasonable. Hansen v. Black, #16-4162, 2017 U.S. App. Lexis 17986 (8th Cir.).



Electronic Control Weapons: Dart and Stun Mode

 ****Editor’s Case Alert****

       A man who suffered from schizoaffective disorder and paranoid delusions stopped taking his medication and then began exhibiting signs of mental decompensation. He entered a state of excited delirium one evening when his wife was out of town, taking destructive actions against the family’s condominium and then throwing a flower pot through the window of a neighbor woman’s condo. She called 911, reporting that he was acting “crazy.” Deputies arrived and found the man naked except for a t-shirt, screaming no and something about water while holding a garden hose with a metal nozzle. They tried to subdue him after he charged at them, physically struggling with him and unsuccessfully attempting several times to use a Taser in both dart and stun mode against him. They finally physically restrained him and handcuffed him, but he kept kicking. He stopped breathing and died, which the coroner said was a natural death resulting from his excited delirium. A federal appeals court upheld summary judgment for the deputies on excessive force claims and for the county on civil rights and disability discrimination claims. Despite the decedent’s apparent diminished capacity, he had committed a series of property crimes, was a threat to his neighbors, and to the deputies, and was actively resisting arrest. A reasonable officer on the scene could have concluded that the use of force was necessary based on the totality of the circumstances. The relevant caselaw did not clearly establish that the deputies violated the decedent’s Fourth Amendment rights Roell v. Hamilton County Board of Commissioners, #16-4045, 870 F.3d 471(6th Cir.).


Expert Witnesses

       A lawsuit claimed that a police officer investigating a tip that illegal drugs were being sold at a convenience store “sucker-punched” a store employee for no known reason, and then kept beating and kicking him for about two minutes as he attempted to get away. A store surveillance tape recorded the incident. At his federal criminal trial for willfully depriving the employee of his Fourth Amendment right to be free from excessive force inflicted by a law-enforcement officer, the officer wanted to introduce expert witness testimony from a former officer that his actions were consistent with police department standards. The trial court excluded the testimony, reasoning that departmental policy was immaterial to the Fourth Amendment standard to be applied and that the expert’s proposed testimony might include an improper opinion about the defendant’s state of mind. The jury returned a guilty verdict. A federal appeals court upheld this result, ruling that such expert testimony is sometimes unhelpful and irrelevant, especially when no specialized knowledge was needed to decide whether an officer’s actions were objectively unreasonable. The alleged misconduct in this case was “easily” within the grasp of lay jurors. U.S. v. Brown, #16-1603, 2017 U.S. App. Lexis 17403 (7th Cir.).


Firearms Related: Intentional Use

Officers entered into a vacant apartment without a warrant and used deadly force on a man trespassing inside who aggressively attacked them, growling and waving a broken hockey stick. A federal appeals court ruled that the officers were entitled to qualified immunity on both warrantless entry and seizure of the apartment, as the man had no reasonable expectation of privacy there. They were also entitled to qualified immunity on excessive force claims, as their actions did not violate clearly established Fourth Amendment law. Woodward v. City of Tucson, #16-15784, 2017 U.S. App. Lexis 17896 (9th Cir.).

     A federal appeals court upheld a judgment for the plaintiff in an excessive force claim against an officer who shot him in the back during a response to a 911 call, rendering him a paraplegic. The court did not consider the officer’s qualified immunity argument because she failed to preserve the issue for appeal. Lam v. City of San Jose, #16-16052, 869 F.3d 1077 (9th Cir. 2017).


First Amendment

    It was not objectively reasonable for police officers to believe that they had probable cause to arrest a man for obstruction when he stood in his own lighted doorway 30 to 40 feet away directing verbal criticism at the officers and telling them that his wife, who they were confronting in the driveway could not follow their instructions as she was disabled. His statements did not amount to “fighting words,” and were protected First Amendment activity. The officers were not entitled to qualified immunity on First and Fourth Amendment claims. A jury would have to decide whether there was a causal connection between the plaintiff’s protected speech and the actions the officers took against him. Hoyland v. McMenomy, #16-2222, 869 F.3d 644 (8th Cir. 2017).

While Wisconsin’s governor was engaged in making changes to the state’s public union laws, one of his top state government policy staffers advocated the changes and drafted the proposed law. At the same time, a county State’s Attorney’s office was investigating the staffer and several other close associates of the governor concerning missing charitable funds and had a judge issue a search warrant. The staffer claimed that she was targeted because of her work on the union bill and her affiliation with the governor, in violation of her First Amendment rights. She sued prosecutors and members of the investigative team. A federal appeals court upheld dismissal of the lawsuit on grounds of qualified immunity. The warrant was valid and the plaintiff stated no claim about the execution of the search. Officers may detain the occupants of a location to be searched when they execute a valid warrant if they have a valid reason for doing so. There is no clearly established rule of law, the court stated, under which an official pursuing a lawful investigation, based on probable cause, has been found liable under the First Amendment. The court found no factual support for the claims that the warrant’s supporting affidavit was procured through deceit or that the warrant was not supported by probable cause.  Archer v. Chisholm, #16-2417, 870 F.3d 603 (7th Cir. 2016).


Racial Profiling

     A state trooper signaled for a Nigerian university student traveling on an interstate highway with a passenger in his car to pull over. The student motorist complied. The trooper approached and asked why the vehicle’s license plate was inside the windshield, as well as stating that the car’s hood was not entirely closed. After issuing a warning citation, the trooper asked if he could search the car. Consent was denied, and about 20 minutes into the stop, the trooper radioed for a drug-sniffing dog, which arrived 10 minutes later and alerted, leading to the discovery of crack cocaine. The student pled guilty to possession with intent to distribute and is serving a ten-year sentence. He subsequently sued for racial profiling as well as violation of the Vienna Convention on Consular Relations. Qualified immunity was granted on the Vienna Convention claims and other claims were dismissed. A federal appeals court reinstated the student’s claim that the defendants engaged in impermissible racial profiling and unlawfully prolonged the stop. Mordi v. Zeigler, #15-3307, 870 F.3d 703 (7th Cir. 2017).


 Search and Seizure: Home/Business

       A married couple sued police officers, claiming that their warrantless entry into their home and subsequent arrest of the husband over a neighbor’s complaint about his throwing objects at them earlier violated their Four Amendment rights. A federal appeals court upheld the rejection of qualified immunity for the officers, finding that the officers had not shown the existence of exigent circumstances justifying a warrantless entry. When the husband closed the interior door to his home, telling the officers to return with a warrant, the situation was such that a reasonable officer, in the absence of exigent circumstances, should have realized that breaking into the house with no warrant, as well as making an arrest inside, violated clearly established law.  Morse v. Cloutier, #15-2043, 869 F.3d 16 (1st Cir. 2016).


Terrorism and National Security Issues

      Two U.S. citizens asserted that they had missed flights and been humiliated at airports after they were placed on the federal government’s “Selectee List,” which designates them for enhanced screening at the airport. That list is a subset of the government’s Terrorist Screening Database (TSDB). The Terrorist Screening Center (TSC) decides whether to accept the designation of a person by the FBI or the National Counterterrorism Center to the TSDB or the Selectee List and decides whether to remove a name after it receives a redress request. Both plaintiffs claimed that they had tried to challenge their inclusion on the list but had only received generalized responses that neither confirmed nor denied their inclusion. Their Fifth Amendment and unlawful agency action claims were dismissed. A federal appeals court upheld this result. The plaintiffs failed to show which protected interest was violated. While they may have been inconvenienced by the extra security precautions, this did not violate their constitutional rights. They had not been entirely prevented from flying or from traveling by other methods. Beydoun v. Sessions, #16-406, 2017 U.S. App. Lexis 17575, 2017 Fed.App. 0214P (6th Cir.)



     Deadly force: Quantifying underreporting of law-enforcement-related deaths in United States vital statistics and news-media-based data sources: A capture–recapture analysis, by Justin M. Feldman, Sofia Gruskin, Brent A. Coull, and Nancy Krieger, PLOS Medicine (Oct. 10, 2017).


    F.B.I.:  New website for the F.B.I. Law Enforcement Bulletin (Oct. 2017).



Cross References


Assault and Battery: Physical – See also, Expert Witnesses

Disability Discrimination – See also, Electronic Control Weapons: Dart and Stun Mode

False Arrest/Imprisonment: No Warrant – See also, First Amendment  (1st case)

False Arrest/Imprisonment: No Warrant – Search and Seizure: Home/Business

Firearms Related: Intentional Use –See also, Dogs

Search and Seizure: Home/Business — See also, Firearms Related: Intentional Use (1st case)

Search and Seizure: Nome/Business – See also, First Amendment (2nd case)

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John Blackmon

A retired law enforcement officer who now serves as the President of the Fraternal Order of Police Tri-County Lodge #3.
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